Full opinion text
MEMORANDUM AND ORDER KOPF, Chief Judge. After a two-month trial, I find and conclude that Nebraska violated its federal obligation to the United States and the States of Arkansas, Kansas, Louisiana, and Oklahoma. To be specific, Nebraska failed to act in good faith as required by an interstate compact when it considered, delayed, and then denied a license to build a low-level radioactive waste disposal facility that was to be used by the citizens of those five states. In so deciding, I do not determine whether the license should have been granted. As I have said before, Nebraska was vested with a great deal of discretion under the law. Entergy Ark., Inc. v. Nebraska, 161 F.Supp.2d 1001, 1005 (D.Neb.2001) (holding, in part, that because of the great discretion vested in Nebraska under the regulations, the private plaintiff corporations had no due-process-protected property interest in the license application). I have no right to second guess Nebraska on the merits of the license application, and I have not done so. That said, the process was infected with bad faith. While it is impossible to sort out what should or would have happened absent this improper behavior, I state with the utmost conviction that a direct and substantial cause of the license denial was Nebraska’s bad faith. As a remedy, I will order Nebraska to pay and disgorge, with interest, roughly $151 million that was expended during the attempt to license the facility in Nebraska. Except for a declaratory judgment that Nebraska acted in bad faith, I will not award other equitable relief (such as a court-supervised licensing) because Nebraska has now made meaningful active equitable relief unworkable and unwise. Any attempt to impose equitable relief beyond a declaratory judgment would make a bad situation far worse. Pursuant to Federal Rule of Civil Procedure 52,1 now set forth the findings of fact and conclusions of law that inform my decision. My findings of fact and conclusions of law are set forth below. I. FACTS The record in this case is massive. Thus, the risk of making this opinion more dense and difficult than it need be is real. I, therefore, resist the urge to describe, debate and then resolve every skirmish and squabble. On the contrary, and despite the truly unfortunate length of this opinion, I strive for relative brevity, and thereby hope for maximum clarity. After all, shorn of all the trappings, the question is a simple one. Is it more likely than not that Nebraska acted in bad faith? A. An Overview 1. Statement of the Case I assume a certain level of familiarity with this case and its 10-year-plus lineage. For others who desire a more general review, see Thomas O. Kelley, Note, Nebraska’s $160 Million Liability?-Entergy Arkansas, Inc. v. Nebraska, 211 F.3d 979 (8th Cir.2001), 80 Neb. L.Rev. 574 (2001). At its heart, this matter rests upon the Central Interstate Low-Level Radioactive Waste Compact (“Compact”). Put simply, the Commission, a body created by Congress and the Compact to enforce its provisions, sued Nebraska primarily claiming that it violated the Compact’s “good faith” provision. Certain of the big power generators (“Entergy & Wolf Creek”) which would have used the disposal site, and U.S. Ecology, Inc. (“USE”), which was to build and operate the site, also sued Nebraska. However, the Court of Appeals for the Eighth Circuit held that these private corporate plaintiffs could not maintain a suit under the Compact against the State of Nebraska. Entergy Ark., Inc. v. Nebraska, 241 F.3d 979 (8th Cir.), cert. denied, - U.S. -, 122 S.Ct. 203, 151 L.Ed.2d 144 (20(ít) (despite claim for damages, affirming decision that the Eleventh Amendment did not preclude the Commission’s suit against Nebraska; reversing decision denying qualified immunity to individual defendants; reversing decision that private corporations’ complaints stated a claim under an interstate compact; remanding for reconsideration of motions to dismiss private corporations’ due process claims). I later decided that they had no property interest under Nebraska law sufficient to give rise to a Constitutional due process claim. Entergy, 161 F.Supp.2d at 1005 (D.Neb.2001) (given that the private corporations could not maintain suit under the Compact, private corporations did not have due-process-protected “property interest” in the license or the money spent in the attempt to obtain it and dismissing those claims). These corporate plaintiffs also have claims against the Commission which derive from the Commission’s claims against Nebraska. I do not discuss those claims in this opinion, but rather deal solely with the Commission’s claims. Contemporaneous with the issuance of this opinion, I also issue another opinion denying the basic claims of the private corporate plaintiffs against the Commission. In the Compact, the member states agreed to develop disposal facilities for low-level nuclear waste generated within their borders, and then the Commission selected Nebraska as the host state for such a facility. The Commission alleges that Nebraska has attempted to evade its obligations under the Compact since 1991 by delaying the decision on a license for the proposed facility and by then wrongfully denying a license. The Commission seeks injunctive relief, a declaratory judgment that Nebraska has violated its fiduciary and contractual obligations under the Compact, an accounting, compensatory' and consequential damages, the removal of Nebraska from further supervision of the licensing process and appointment of a third party to exercise supervision, and attorney fees and costs. The Commission does not assert a claim of personal liability against the State officials. 2. The Compact Under the “Compact Clause” of the Constitution, only Congress has the authority to allow States of the Union to enter into agreements which substantially impact upon federal interests. That is, “No State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State, or with a foreign Power _” U.S. Const, art. I, § 10, cl. 3. Congress passed the Low-Level Radioactive Waste Policy Act of 1980 (the Act), 42 U.S.C. § 2021b et seq. (amended 1986), “to promote the development of regional low-level radioactive waste disposal facilities.” Concerned, Citizens of Neb. v. United States Nuclear Regulatory Com’n, 970 F.2d 421, 422 (8th Cir.1992). See 42 U.S.C. § 2021d (“Regional compacts for disposal of low-level radioactive waste”). Under the authority of the Act the member states entered into the Compact, which was passed as original legislation by each of the states and by Congress. Omnibus Low-Level Radioactive Waste Interstate Compact Consent Act, Pub.L. No. 99-240, tit. II, § 222, 99 Stat. 1859, 1863-71 (1986) (reprinting the Compact referred to by article). The Central Interstate Low-Level Radioactive Waste Compact is also found in Nebraska law at Appendix § BB, Neb.Rev.Stat. Vol. 2A (Reissue 1989) (a superceded volume). The Compact established the Commission to enforce its provisions and provided the framework for licensing a facility for the disposal of low-level radioactive waste generated in the five states. See Arts. Ill & IV. Several provisions address performance of obligations imposed by the Compact. Each of the states has “the right to rely on the good faith performance of each other party state.” Art. 111(f). The state selected as the host for a disposal site is required “to process all applications for permits and licenses required for the development and operation of any regional facility or facilities within a reasonable period from the time that a completed application is submitted.” Art. V(e)(2). By filing suit, among other methods, the Commission is explicitly commanded to “require all party states ... to perform their duties and obligations arising under this compact .... ” Art. IV(m)(8). 3. The Preliminary Injunction Opinion I first had occasion to consider the merits of the Commission’s claims at a hearing on a motion for preliminary injunction. Entergy Ark., Inc. v. Nebraska, 46 F.Supp.2d 977 (D.Neb.1999). At that time, I determined that the Commission would probably prevail and I enjoined Nebraska from pursuing a state administrative hearing that would have reviewed the license denial under conditions which would not protect the Commission and which might impair this court’s ability to decide this case. That decision was affirmed on appeal. Entergy, Ark., Inc. v. Nebraska, 210 F.3d 887 (8th Cir.2000). Pursuant to Rule 65(a)(2), the testimony at that preliminary injunction hearing has become part of the evidence at this trial. In the preliminary injunction opinion, I found that it was likely that Nebraska engaged in bad faith when it denied the license. I found that bad faith was shown by the following evidence: (1) Governor Nelson’s campaign promise to kill the “nuclear dump” and questionable behavior by his subordinates in an apparent effort to assure that his political promise would be carried out; (2) despite the recommendations of their own auditor, the refusal of Nelson’s regulators to adopt a budget and timetable potentially resulting in the waste of eight years of work and more than $74 million; (3) a 1993 decision to deny the application in the face of a legal opinion, from Nebraska’s outside counsel in this case, that denial was not required by the regulations; (4) a work slow-down over a monetary dispute despite the fact that Nebraska had received millions of dollars from the Commission; (5) the 1998 decision to deny that appears inconsistent with previous positions articulated by the regulators; (6) inclusion of the Department of Health in the decision-making process in violation of state law as declared by a state district judge; (7) the failure to meet a deadline adopted by the Commission and upheld by my colleague, Judge Urbom; (8) repeated meritless litigation in this court; and (9) efforts by Nebraska, represented by former Governor Nelson’s law firm, to preclude the Commission from raising the issue of bad faith during the administrative hearing which would have reviewed the license denial but for the injunction. Entergy, 46 F.Supp.2d at 994-95. B. Players, Terms, and Time Line Because of the many names, terms, and abbreviations, it is helpful to set forth a partial glossary. Such a listing appears below: 1. Names AE American Ecology,a publicly traded company and the parent of U.S. Ecology. Rod Armstrong He served as the supervisor of the Governor’s policy research office. Kate Allen A lawyer who worked at the Governor’s policy research office. Later, she served on the staff of a state senator while doing legal work for a group of site opponents. When working for the Governor, she was assigned to work on low-level nuclear waste matters. Bechtel A large international engineering firm hired by U.S. Ecology to assist it in selecting the site and prosecuting the license application. Rick Becker A lawyer who worked at the Governor’s policy research office. He was assigned to work on low-level nuclear waste matters. He had previously been a law clerk to Pat Knapp while Knapp represented the local monitoring committee. Tim Becker At one time, the Governor’s chief of staff. He previously held other positions on the Governor’s staff. Boyd County The Nebraska county where the disposal site was to be situated. Butte A village near where the disposal site was to be situated. John Breslow The Auditor of Public Accounts who authored a report critical of the Department of Environmental Quality. Marvin Carlson A University of Nebraska geology professor. He served as a consultant to Nebraska, and was the review manager for site characteristics. Collier, Shannon A. Washington, D.C., law firm that served as a consultant to Nebraska during the licensing process. With others, that firm also served as trial counsel in this case. A lawyer for Collier, Shannon authored a legal opinion that was not followed. John Conley, and Conley, Smith John Conley worked for Conley, Smith. He was specially hired to do a financial analysis of U.S. Ecology. DEQ The Nebraska Department of Environmental Quality. DOH The Nebraska Department of Health. GAO The General Accounting Office, an arm of the Congress. It prepared a report on the site selection process. HDR A large engineering firm that was primarily responsible for providing most of the consulting services to Nebraska. Dr. Mark Horton A pediatrician, who served as the Director of the Department of Health. He was the decision-maker for that agency until he left Nebraska in early 1997. JHC An environmental engineering firm that together with HDR was responsible for providing and managing most of the consulting services to Nebraska. Dale Jacobson An environmental engineer employed by JHC who was responsible for managing all the consultants. He also served as the review manager for qualifications of the applicant. Kennedy, Holland The law firm where Governor Nelson worked before he was Governor. Kennedy, Holland lawyers, especially Bill Lam-son, did a lot of legal work for Nebraska on low-level nuclear waste matters including prosecuting several of the lawsuits filed against the Commission. Pat Knapp A lawyer who represented the local monitoring committee. The local monitoring committee opposed the application. Bill Lamson A highly regarded trial lawyer with Nelson’s former law firm who was hired in 1993 to coordinate Nebraska’s legal positions on the license. Lamson, Duyan & Murray The successor law firm to Kennedy, Holland that Nelson rejoined after leaving the Governor’s office. Tim Becker also joined that firm. Steve Moeller A lawyer who worked at the Governor’s policy research office. He replaced Allen. He was assigned to low-level nuclear waste matters. Ben Nelson E. Benjamin Nelson, the Governor of Nebraska during most of the licencing process and now United States Senator. He is a lawyer. W. Don Nelson A political confidant and friend of Governor Nelson’s. Also a friend of Randy Wood’s. He later went to work on Ben Nelson’s U.S. Senate staff. NRC The Nuclear Regulatory Commission. Jay Ringenberg He worked at the Department of Environmental Quality, and was the staff person who was primarily responsible for supervising the licensing efforts of that department. Kim Robak A lawyer. She served as legal counsel to Governor Nelson, then chief of staff to Governor Nelson, and after that as Lt. Governor. Cheryl Rogers She worked at the Department of Health, and was the staff person who was primarily responsible for supervising the licensing efforts of that department. Dr. David Schor A pediatrician who became the decision-maker at the Department of Health in January of 1997, replacing Dr. Horton. Sandy Scofield Former state senator who was Governor Nelson’s first chief of staff. Kate Allen previously worked for Scofield when she was a state senator. Don Stenberg Attorney General for the State of Nebraska. Stewart Taylor A hydrologist, employed by Bechtel, who advised U.S. Ecology. At the request of Nebraska’s consultants, he prepared a computer model that purported to determine whether groundwater discharged to the surface. Linda Willard Assistant Attorney General for Nebraska who did much of the legal work for Nebraska. She authored a legal opinion that was never issued. Randy Wood Director of the Department of Environmental Quality, and the primary decision-maker regarding the application. 2. Terms Contested Case A Nebraska administrative procedure that allows an unsuccessful applicant for a license to contest the agency decision. It is conducted by a hearing officer, who makes a non-binding recommendation. The decision-makers who made the initial decision also decide the merits of the contested case. DSER Draft Safety Evaluation Report. The DSER was prepared by Nebraska’s consultants and reviewed by the decision-makers. Its purpose was to determine if the facility meets applicable state laws and regulations. Hydrograph A graph showing water level measurements taken from a well over time. IPA Independent Performance Assessment. A study prepared by a Nebraska consultant to determine whether the facility as it degraded over 10,000 years would threaten the health or safety of the public. LLRW Low-level radioactive waste. LLRW Program A group comprised of employees at the Department of Health and the Department of Environmental Quality who, together with the consultants, were responsible for the licensing effort. LMC Local Monitoring Committee. A creature of statute created to foster communications between local residents, the state, and the developer. PRO Governor’s policy research office. SAR Safety Analysis Report. The SAR is the application for a license. It is amended by submitting revisions. Technical Review The process of reviewing the application by Nebraska’s consultants and agency staff. There were “technical reviewers” who were experts in particular disciplines. The technical reviewers were supervised by “review managers” who were responsible for several technical reviewers involving a variety of disciplines. For example, a technical reviewer for hydrology might be overseen by a review manager who was a geologist and who was responsible for all site characteristic issues. 404 Permit A federal license issued by the Army Corps of Engineers to U.S. Ecology which allowed U.S. Ecology to remove a small wetland. 3. Time Line The facts relevant to this case span a period of more than 10 years. Because of that long history, a time line is necessary. Although tedious to read, a complete understanding of this case is impossible without a full appreciation of the chronology. 1980 Congress enacts the Low-Level Radioactive Waste Policy Act (amended in 1986) to promote the development of regional low-level radioactive waste disposal facilities. 1983 Nebraska passes LB 200 which authorizes Nebraska to enter into Compact. 1986 Congress consents to the Compact. Nebraska passes the Low-Level Radioactive Waste Disposal Act, thereby implementing the Compact. December, 1987 Nebraska chosen as host state. According to Governor Kay Orr, “the State of Nebraska recognizes its responsibility as a member of the Compact and accepts such designation as host state.” (Ex. 45 at G.) January, 1988 USE enters into formal contract with Commission. (Ex. 13.) Commission also enters into first of many agreements with big generators to provide funding for the project. (Ex. 14.) About $88.5 million ultimately expended by Commission, which amount is mostly funded by Generators and USE. (Ex. 1083, at last page.) 1989 HDR and JHC are hired as chief consultants for Nebraska to provide most of the consulting services to Nebraska regarding any license application. (Tr. 1333, 1651.) HDR is a large engineering firm, and JHC is a speciality environmental engineering firm. Later, University of Nebraska also retained to provide consulting services. HDR and JHC supervise all the consultants. 1989 13.02 inches of precipitation at Butte, NE, for this year versus mean annual precipitation of 23.67 inches at this site. (Ex. 3384, at 2.4-53.) February, 1990 Nebraska legislature informed that Boyd County site near Butte, NE, has been selected. February 21, 1990 Robert V. Eye, a Kansas lawyer, acting as lead counsel, files Concerned Citizens of Nebraska, Ronald Schumann, Lowell Fisher, Diane Burton and David Follrichs v. United States Nuclear Regulatory Commission, Nebraska Department of Environmental Control, Central Interstate Low-Level Radioactive Waste Compact Commission, and U.S. Ecology, Inc., 90-L-70. (Ex. 1535 (docket sheet and selected filings).) The suit sought to prevent the establishment of a low-level radioactive waste disposal site in Nebraska. The case is dismissed by Judge Urbom on October 19, 1990 as against USE and the Commission and on April 22, 1991 as against the NRC, with the judge holding that the NRC’s low-level radioactive waste regulations were valid and that the remainder of the plaintiffs’ claims also lacked merit. On July 6, 1992, the court of appeals affirmed Judge Urbom’s two orders in part and reversed in part. It held that Judge Ur-bom did not have jurisdiction to consider the challenge to the NRC regulations, but otherwise affirmed the remainder of his decision. (Id.) July 27, 1990 USE files 4,000-page application with Nebraska for Boyd County site. (Ex. 1411, App. A at 14.) The application consists in part of a Safety Analysis Report (SAR) which was amended throughout the process to include additional information. As changes were made by USE, Nebraska substituted the new pages for the old ones in the SAR. The last revision of the SAR was Revision 8A. Fall, 1990 Candidate E. Benjamin Nelson attacks Governor Orr for doing “far too little to protect the interests and respond to the concerns of’ local residents. (Ex. 28, Attach. A (AP story).) To a cheering crowd of Boyd County residents, Nelson promises that “[i]f I am elected governor, it is not likely that there will be a nuclear dump in Boyd County or in Nebraska.” (Ex. 28 at ¶ 3 (affidavit of AP reporter) & Attach. A; Filing 99, at Tr. 75, 77-79 (testimony of AP reporter in preliminary injunction transcript).) Statement confirmed by Nelson to AP reporter. (Filing 99, at Tr. 76-77.) AP puts story on the wire. (Ex. 28, Attach. A; Filing 99, at Tr. 72-73.) November, 1990 Nebraska commences technical review of license. (Ex. 1411, App. A at 18.) December 13, 1990 Kate Allen, a lawyer and a site opponent, and Greg Hayden, a University of Nebraska professor and another site opponent who is later appointed by Nelson to serve as Nebraska’s Commissioner on the Compact Commission, have meeting with lawyers at Kennedy, Holland, the law firm with which Nelson is then affiliated, about low-level radioactive waste and what Governor-elect Nelson should be doing. (Ex. 342.) Allen’s notes indicate that they discuss the need for Governor-elect Nelson to state his goals. “For example: withdraw from Compact,” “prevent a facility from being built in Nebraska,” “site and license a facility with community consent as a condition of licensure,” “grant a license only if shared liability language is amended into the Compact,” “delay the granting of a license until all of the other states/compacts have either submitted a license or until a majority have granted licenses (to try to insure that Nebraska will not be the first or second to license a facility in case the feds decide we only need a few facilities nationwide).” (Ex. 342, at GOM42356). (These notes, and many others, were hidden in Allen’s basement until 2001.) Date Unknown, but probably late 1990 or early 1991 Allen’s files include a handwritten note stating that “ultimately to get leverage will have to threaten to W/D (fiduciary duty)” from the Compact. (Ex. 1441, at GOM46975.) This same note further indicates: “Redo-memos,” “remove names,” and “ID as atty/client work product.” (Ex 1441, at GOM46976.) 1990 21.89 inches of precipitation at Butte, NE, for this year versus mean annual precipitation of 23.67 inches. (Ex. 3384, at 2.4-53.) January, 1991 Nelson becomes Governor. After Nelson becomes Governor, Commission pays out more than $70 million and USE makes equity contributions of more than $1 million. (Tr. 3821-22; see also, demonstrative exhibit 1083JO at last page (total amount paid by Commission from January 1, 1991 to present is $70,362,068.26; total equity contributions by USE from January 1, 1991 to the present are $1,068,239.22).) Aside from USE equity contributions, and small annual dues from the five states, the money is provided by the generators. (Id.; Tr. 3826.) December, 1990-January, 1991 Kate Allen joins Nelson’s staff, known as the Policy Research Office (PRO). Allen had been a legislative aide to Sandy Sco-field, a former Nebraska state senator who became Nelson’s chief of staff. Scofield was a site opponent. (Tr. 102, 234.) Allen assigned to “staff’ the low-level nuclear waste issue. One of her first tasks is to list Nelson’s LLRW campaign promises so that Nelson could review them and go to work on fulfilling them. (Tr. 266.) In a December 30, 1990 memorandum captioned “Re: Action Plan on LLRW,” Allen submits to Nelson a list of seven LLRW campaign promises. (Ex. 1526, at PRO09225.) Kim Robak testified at trial that within months of working with Allen “I do recall believing that Kate was very biased on the issue.” (Tr. 469-70.) Because of her bias, Robak testified that Allen was directed to keep a “low profile.” (Tr. 472.) January 23, 1991 Allen takes pages of detailed notes involving a meeting with the Governor and site opponents in Boyd County. Among other notations next to the initials “EBN” (standing for E. Benjamin Nelson), she writes “want USEcol to think EBN is deranged; created noise & difficulties think we can win it; expensive.” (Ex. 877, at PR059289.) At another place, besides the initials EBN, Allen wrote “important we get Director w/o agenda who we can trust — so we can critically evaluate the ER & SAR.” (Ex. 877, at PR059293 (capitalization, spelling, and punctuation in this and any. other quoted e-mail is as in the original, unless otherwise indicated).) At trial, Allen testified that looking back at it, she thought Nelson wanted to keep the proponents of the license off balance by adopting a “deranged” posture. (Tr. 283-84.) 1991-1992 Allen attends various non-public meetings at DEQ and DOH when discussions with directors and other DEQ and DOH staff take place regarding the license. On at least one occasion (May 7, 1992), Allen is present when technical review managers are present; asks questions of the review managers; and offers opinions, such as “the groundwater rises into the wetlands.” (Ex. 553, at JAD000016-18.) Allen’s notes regarding technical issues discussed at this May 7, 1992 meeting include: “Showstoppers: wet lands [-] surface expression of GW.” (Ex. 399, at GOM49438.) Allen’s presence upsets the review managers and, after the meeting, they complain. Jay Ringenberg, the LLRW program manager for DEQ, testifies that it was improper for Allen to attend this type of meeting, and it was improper for her to participate in such a meeting. Ringenberg complains to Wood. Ringenberg testifies that Allen no longer appeared at meetings when the review managers were present. (Tr. 4637-41.) February 4, 1991 Allen writes memo to Nelson and Sco-field recounting a meeting with Harry Borchert and Cheryl Rogers. Borchert was Rogers’ boss at DOH and the head of Radiologic Health. Rogers was the program director for license review for DOH. In the memo, Allen recites the complaints of Borchert and Rogers about DEQ and U.S. Ecology. Allen writes “DOH seems to be the only entity that is asking hard questions.” Allen concludes this way: “BOTTOMLINE: Both Harry and Cheryl said that they cannot say to the Governor nor to the citizens that the health and safety of the people is or will be protected if things continue as they are now.” (Ex. 362.) February, 1991-October, 1991 First round of technical review comments and responses. Technical comments were forwarded by Nebraska in February, 1991, March, 1991 and August, 1991. USE responds in August of 1991 and October of 1991. (Ex. 1411, App. A at 19.) March, 1991 Rogers notes a meeting at the Governor’s PRO office regarding the scope of work for geologists Byrd and Kaplan. (Tr. 5267-68.) Initially, Byrd and Kaplan had been retained by DEQ under a contract with the University of Nebraska to oversee on-site geological borings extracted by USE and its consultant Bechtel. (Tr. 5263-64.) On October 31, 1990, Byrd had submitted an unsolicited report to Marvin Carlson, a review manager for site characteristics, that groundwater might intrude into the site. (Ex. 7012.) March, 1991 George Smith is hired as a technical reviewer for environmental monitoring at the insistence of DOH and Rogers. Smith comes from SEG, a subsidiary of Westinghouse. Westinghouse is a competitor of USE-it was the other bidder for the contract with the Commission. (Exs. 426, 3467; Tr. 1387-88, 3065.) HDR and JHC did not procure the services of Smith. Rather DOH, Rogers, and Borchert first contact SEG and then HDR is instructed to hire Smith. (Tr. 1387-91, 5349.) Later, Smith becomes a policy “advisor” to the DOH director. (Tr. 5376.) April 10, 1991 A lawyer at Kennedy, Holland writes a “Personal and Confidential” letter to Nelson, as Governor. (Ex. 1556.) Addressed to “Dear Ben,” the letter discusses the fact that Nelson has had discussions with the law firm about USE’s suggestion that it would cease work if LB 72 passed. LB 72 related to imposing another “community consent” requirement. The letter concludes that passage of the bill would not allow USE to stop work under its contract with the Commission. (Ex. 1556.) The letter further states: “Also, we have not addressed whether passage of LB 72 could arguably be viewed as a breach of Nebraska’s good faith performance of the compact. But as we have discussed, LB 72 and some of the other legislation introduced this session which effectively amends the Compact could be viewed by others as a breach of the Compact by Nebraska, unless the other party-states approve those changes.” (Id.) May 14, 1991 Scofield, Nelson’s chief of staff, sends an e-mail to Allen stating in pertinent part: “[A]lso, would you like to get on a conference call with me and call randy wood so he knows where the governor is going on llrw and what expectations for him will be. i think the two of us can give him the perspective he needs and also judge if he’s up to the task.” (Ex. 346.) May 16, 1991 Allen sends e-mail to Nelson’s chief of staff, legal counsel, head of PRO, and other Nelson staffers concerning the Commission stating, among other things, that “possibly it’s time for the Deranged Gover-nortto [sic] come forward.” (Ex. 1474.) Summer, 1991 Nelson appoints Randy Wood as Director of DEQ. W. Don Nelson (who is not related to Governor Nelson) recommended Wood to Governor Nelson. (Tr. 959.) Wood and W. Don Nelson are friends. (Tr. 2230.) W. Don Nelson knew Wood in Wyoming when W. Don Nelson served that State’s Governor as the chief of staff and Wood served as director of Wyoming’s equivalent of the DEQ. (Tr. 959.) W. Don Nelson, then residing in Lincoln, Nebraska, is also a close friend and political confidant of Governor Nelson. (Tr. 958.) W. Don Nelson later became a member of Nelson’s U.S. Senate staff, serving as his State Director. (Tr. 958.) Wood’s regulatory philosophy is such that he is proud to publicly state that he would “make no effort whatsoever to work with an applicant to work out a way to use a piece of property that would be suitable.” (Ex. 1068, at 16 (Wood’s testimony before the Import Policy Committee of the Southeast Compact Commission on February 24, 1993).) July, 1991 After a request for investigation by U.S. Senator J. James Exon of Nebraska, the General Accounting Office (GAO) approves site selection process. (Ex. 3596, at 1-2.) GAO adds that the Boyd County location is “the only candidate site with good potential to meet the state’s licensing requirements.” (Id. at 10.) Nebraska tells GAO that licensing process will take about 15 months and cost about $6 million. (Id. at 3.) Kate Allen makes notes about the GAO report and writes “how do we slow down the process.” (Ex. 1460, at GOM37307.) Auyust 5, 1991 throuyh Auyust 16, 1991 Lawyers for Kennedy, Holland do legal work and bill Nebraska “re negotiations-Central Waste Comm. & U.S. Ecology,” including meetings and phone conferences with Nelson, Scofield, Allen, and Robak. (Ex. 354.) During this time, Nelson served as Nebraska’s commissioner on the Commission and had a Kennedy, Holland lawyer appear for him. (Id.; Tr. 7221, 7307-8.) Auyust IS, 1991 Allen, aware that Wood had received “technical briefings” regarding wetlands and flood plain issues, suggests to Wood that he send a letter to USE expressing his “concern” over these issues. (Ex. 1486; Tr. 254.) Allen also discusses letter, and need for hand delivery, with Nelson. Allen then hand delivers letter to USE in middle of negotiations between Commission and generators regarding whether generators will contribute more money. This letter disrupts the meeting. (Filing 99, at Tr. 123-27, 155 (preliminary injunction transcript).) Kennedy, Holland lawyer bills Nebraska for “meeting with Kate Allen and attending Waste Compact negotiations; conf. with Ben Nelson re results of meeting. Going over results of previous meeting.” (Ex. 354.) August 16, 1991 Lawyer for Kennedy, Holland bills Nebraska for “attending Waste Compact negotiations. Nebraska being asked to leave Compact because of uneasiness of waste producers and U.S. Ecology in negotiating before Nebraska representatives because of hostile political atmosphere and attitude of Dept, of Environmental Cont.” (Ex. 354.) October 1, 1991 Collier, Shannon law firm of Washington, D.C., (also trial counsel here) advises “that Nebraska’s site suitability requirements would not be violated if U.S. Ecology’s disposal facility were to be located as proposed” despite the fact that part of the site allegedly contained wetlands and flood plains. (Ex. 593, at JHC02421.) October 21, 1991 Dr. Mark Horton, a pediatrician with a master’s degree in public health, becomes Director of DOH upon the appointment of Governor Nelson. (Tr. 4325, 4337-38.) Horton has no experience in LLRW issues. When he testified at trial, Horton “could not recall” the details of critical events and details regarding the license process or meetings with Governor and others in the Governor’s office. (E.g., Tr. 4378-80 (proposal to issue intent to deny without prejudice based on nonreceipt of information from USE), 4417-18 (specifics of how 1993 intent to deny decision was reached or how Governor was informed of that decision).) October 22, 1991 Rogers sends Ringenberg at DEQ a memo regarding wetlands and questioning site suitability. (Ex. 3655.) October 28, 1991 Rogers sends Allen an e-mail regarding site suitability, indicating that Jay Ringen-berg (the DEQ program director) “received the site suitability memo rather well,” and recounting a meeting between DOH and DEQ legal counsel. (Ex. 403.) Rogers testifies at trial that she talked to the Governor’s office about issues regarding wetlands and how to interpret the regulations. (Tr. 5205-6, 5546.) About November 18, 1991 Harry Borchert, with DOH, apparently makes a public statement that the site cannot be licensed because of wetlands and flood plains on the site. This creates a public furor. Wood complains to Horton. (Ex. 1012.) Horton testified that Borchert was counseled about the statement, though Horton could not recall whether he or someone else counseled Borchert, or whether he or someone else investigated whether Borchert made the statement. (Tr. 4439-41.) December 24, 1991 Nebraska tells USE that application is complete. (Ex. 1411, App. A at 14; Ex. 7020.) 1991 24.78 inches of precipitation at Butte, NE, for this year versus mean annual precipitation of 23.67 inches. (Ex. 3384, at 2.4-53.) 1991 and 1992 “Turf battle” between DOH and DEQ festers. (Tr. 526.) Wood and Horton meet with Robak. Wood testifies that Ro-bak instructed him that “the State’s position [is] that the Department of Health had jurisdiction” and to “make sure that the Department of Health was completely involved in this issue as they needed to be.” (Tr. 6671.) April 8, 1992 Pat Knapp, acting as counsel for the Local Monitoring Committee (LMC), a group of site opponents, files County of Boyd Local Monitoring Committee v. Central Interstate Low-Level Radioactive Waste Commission, 4:92CV3137. (Ex. 1536 (docket sheet and selected filings).) The suit contends that the Commission violated the law by not providing information to the LMC. (The LMC is a creature of Nebraska statute and was intended to foster communication between residents of the county where a site was situated, the developer, and the State.) In particular, the LMC wanted information about an amendment to the funding arrangement between the Commission and the Major Generators which provided $16.9 million toward the licensing process. Holding in favor of the Commission, Judge Urbom dismisses the case on June 25, 1992. No appeal is taken. April 14, 1992 Allen sends Randy Wood an e-mail regarding the delay in issuing a license to USE in California due to objections to the legislative confirmation of California’s chief regulator. In the e-mail, Allen recounts a conversation with a lawyer in the California Department of Environmental Health. Allen states: “This [California delay] has got to be a setback for U.S. Ecology’s financial situation. They need a license in hand before they get any credit with a bank.... U.S. Ecology is being squeezed pretty hard. We might want to be in a ‘heads up’ posture.” (Ex. 312.) The email also went to Nelson, his chief of staff, and others in the administration. May, 1992-November, 1992 Nebraska forwards second-round technical comments to USE in May. USE responds in November. (Ex. 1411, App. A at 20.) Summer 1992 Cheryl Roger’s “little lab on the prairie” (LLOP), as the HDR consultants derisively referred to it (Tr. 1373), is established in Butte, NE. (Tr. 5345.) Despite the fact that HDR believed the most economical way to handle environmental monitoring data was to have an independent laboratory do the work (Ex. 3686 at 10), DOH insists that a DOH/DEQ laboratory be set up in Butte. (Ex. 941.) June 25, 1992 Allen takes detañed notes regarding a meeting with Nelson and site opponents. Among other things, her notes, next to the initials “EBN,” indicate the following: “I can’t tell you/promise you that I will stop this” [but] “he wants it elsewhere”; when asked about “good faith,” “If we don’t proceed fairly, then they will file a suit against the state for bad faith” but “I’m not afraid yet”; “Let’s talk about litigation [without] giving our plan to the other side-We want to keep them off balance”; “Our best bet is to be the under dog who has been taken advantage of by the bad power companies”; “we have to be careful not to get public sentiment against us”; regarding potential helpfulness of a revised GAO report, “[a]s a publicity tool, if it is damaging we’ll really use it”; “I must be creative, otherwise the press will tire of EBN; little boy that cried wolf’; “Litigation, we will continue to look at every angle.” (Ex. 1497, at GOM35466-73.) June, 1992 — July, 1992 Nebraska’s Auditor of Public Accounts recommends that the DEQ adopt a budget and a timetable for the project. (Ex. 19 at 10-20.) The auditor notes that the absence of a departmental budget “is the equivalent of a blank check signed by the ratepayers.” (Ex. 19 at 11.) Auditor notes Nuclear Regulatory Commission had developed a guideline suggesting a license review should be completed within a 15-month time frame. (Ex. 19 at 15.) Wood refuses to adopt a budget or a time table. (Ex. 19, App. B, at 66-69.) Kate Allen helps Wood write the response. (Tr. 301; Ex. 356.) Allen’s notes indicate that she tried to convince the auditor to change his audit findings and state that the auditor “is very much aware of how angry the [G]overnor is.” (Ex. 379.) Horton essentially goes along with Wood about a time table. (Tr. 4488-89.) Horton cannot explain his thinking about a lack of a budget. (Tr. 4489-90.) July 28, 1992 Nelson has meeting lasting 1.5 hours with Robert Eye, the Kansas lawyer who had earlier sued Nebraska over the waste site; Jim Selle, a Nebraska site opponent; Pat Knapp, the LMC lawyer who had earlier sued the Commission over funding of the waste site; and people on the Governor’s staff, including Kim Robak and Rod Armstrong, head of PRO. (Tr. 722, 725-29.) At that meeting Knapp argued that Nelson should require DEQ and DOH to make a decision about whether there was a “fatal flaw” on the site because of the wetlands before doing any more work on the license. Nelson responds, “it sounds like common sense to me.” (Tr. 727.) July 28, 1992 After the earlier meeting that day with Governor Nelson, and in the Governor’s absence, Eye, Robak, Knapp, and Rod Armstrong hold further discussions about the legal details of the “fatal flaw.” (Tr. 729-32.) According to Pat Knapp, Robak asked her what DEQ’s position was on this issue, and Knapp responded that she was uncertain, though she believed that DEQ was “simply acquiescing” in the position of U.S. Ecology. (Tr. 731-32.) Knapp agreed to submit to Robak a memorandum outlining her views. (Tr. 732.) On or about July 31, 1992 Knapp submits the promised memo to Robak (Tr. 732-36; Ex. 966) and a partial copy is later found in Kate Allen’s files (Tr. 733-34; Ex. 385). About 7 days after July 31, 1992 According to Knapp’s testimony at trial, Robak calls Knapp and “indicated to me [Knapp] that she had talked to DEQ. She did not say to whom. She just said she had talked to DEQ, that there was, that they had told her that there was documentation to support the position that you could engineer around a fatal flaw, that she would look into it and she would get back to me .... ” (Tr. 735.) August 17, 1992 Allen informs Kim Robak that she had been in touch with Vermont Low-Level Waste Authority concerning “their lawsuit against their contractor for ‘missing’ a fatal flaw of wetlands on the selected site” and “drafting a job description for an attorney position for Steve Moeller to work on legal issues on LLRW.” (Ex. 365.) August 19, 1992 Allen proposes a meeting to her superiors. She wants to meet with site opponents and Steve Moeller to do the following: “to take all of the ideas and potential options and put our collective legal minds and substantive information together and come up with options for the Governor with an analysis of risks and possible legal outcomes, (essentially what you asked of the analysts at Monday’s meeting).” (Ex. 366.) On or about August 20, 1992 Allen’s notes reflect discussions with someone on Nelson’s staff, perhaps Kim Robak, and the preparation of detailed plans regarding how to change Randy Wood’s mind if Wood decided that wetlands on the site were not a fatal flaw. (Exs. 309, 361, 382, 383 (all bearing a Bates number with a GOM prefix, indicated they were produced from boxes in Allen’s basement containing documents from her tenure at PRO (Tr. 376-77)).) The notes contain an extensive discussion about the liability of doing so, including the “good faith” provision of the Compact and the absence of a good faith obligation under State law. At trial, Allen was asked the following question and gave the following answer: Q. Would you agree that it [Ex. 309] appears to reflect consideration by two attorneys, yourself and Ms. Ro-bak, about legal options, and possible legal consequences, of trying to change the mind of Director Wood on the fatal flaw issue? A. Yes. (Tr. 378.) Allen admits that these documents were hidden in her basement until 2001, that they “might show bad faith against the State of Nebraska” and, in any event, that they were “[a]t least very damaging.” (Tr. 387.) September 1, 1992 Allen has meeting or discussion with Mike Linder, legal counsel at DEQ. (Ex. 1499.) Her notes indicate that they discuss Linder’s thoughts about the regulations. Under the caption “Legal conclusion” she writes, among other things, “no prohib. to h’vng wetland in disposal site.” At another point, she writes, placing the thoughts in brackets, “[no prohibition against engineering].” (Ex. 1499, at GOM47458-59.) September 2, 1992 Allen speaks with two Local Monitoring Committee (LMC) members. The LMC is a creature of Nebraska statute generally intended to serve as a voice for residents of the area in which the site is situated and is comprised mostly of site opponents. The two LMC members want to talk to Nelson about water on the site and other concerns. Allen sends an e-mail to her supervisor (Armstrong) reminding him that “LMC can still be used by the Governor to do things he cannot do directly.” (Ex. 793.) September 2, 1992 Allen writes an e-mail to her supervisor at PRO outlining her priorities. In the second paragraph, she types and then writes in her handwriting the following: Summarizing and following up my discussion with Mike Linder et al in DEQ concerning their legal analysis that the floodplain and wet lands are not a fatal flaw. I need to brief the folks upstairs and get back to the LMC. Also, deciding whether we ask Don Stenberg [the Nebraska Attorney General and a political foe of Nelson’s] for an Attorney General’s opinion on the issue. If DEQ says ‘no fatal flaw' and Stenberg supports their conclusion, then hello waste dump and send the National Guard to Boyd County. — I am reviewing all the materials given to me by DEQ as supporting guidelines, etc. I’m working on a summary to help present to Kim/EBN. I may need follow-up with DEQ for some clarification. (Ex. 395, at GOM47568.) September 8, 1992 Pat Knapp, the lawyer for the LMC, writes a letter to Kim Robak indicating that Allen has sent her “the documentation which supposedly supports NDEQ’s position that one can engineer around flaws in a LLRW site.” (Ex. 975.) September 14, 1992 On September 14, 1992, Robak responds to Knapp in a terse and formal letter that DEQ has not taken a position. (Ex. 974.) Sometime between September 11, 1992 and September 21, 1992 The notes of Carla Felix, an administrative assistant at DEQ, who is much later promoted to program manager of the LLRW program, describe Wood’s account of a telephone conversation he had with a site opponent, Jim Selle. (Tr. 5009; Ex. 271.) The notes indicate Wood stated that he would be asking for an opinion from the Attorney General regarding engineered barriers and wetlands and that the site opponents thought they would have some input into the drafting of the request for an Attorney General’s opinion. Wood advises that he was- unaware of such an agreement, but stated he would check with the Governor’s office. He called Robak. Robak stated that she too was unaware of that point. Then Felix’s notes added: “They [meaning Robak and Wood] said they must have a serious discussion of ‘communications’ problems-Randy said some action will be taking place-but couldn’t say more-I [Felix] teased him saying I’ll let my imagination run wild-He laughed said let it go.” (Ex. 271.) At trial, Felix thought the “action” that might be taken referred to Kate- Allen. (Tr. 5039.) September 17, 1992 and September 21, 1992 In a memo that is apparently first written on September 17, 1992 and revised on September 21, 1992, Klein, a DOH lawyer, writes Horton stating that: “The agencies have similar regulations on site suitability requirements, but have reached significantly different interpretations of those sections.” (Ex. 775, at PRI 34473.) September 18, 1992 Allen is fired. Among other things, her notes reflect that she was told by her supervisor at PRO that the “Governor has determined that I am a legal liability.” (Ex. 1078, at MOG00001.) She is also told “The Governor will help you get a job if you agree that you will indicate that it was your decision to leave and that you were burned out. If not (if there is bitterness), there will be no assistance in getting a job.” (Ex. 1078, at MOG00001.) At trial, Allen testified that “I requested, in exchange for not saying anything, letters of reference, which they provided to me .... ” (Tr. 414.) Alen is told that she can stay until her retirement vests in October or early November. (Tr. 158.) October 5, 1992 Allen takes notes of meeting with LMC members; Pat Knapp, their lawyer; and Nelson. (Tr. 402; Ex. 355.) Among other things, Alen’s notes indicate, next to the initials “EBN,” that “it’s a poor site, but it may still be a licensable site” and “he dz not feel he can call a moratorium.” (Ex. 355, at GOM46399). The notes next show a discussion about Randy Wood seeking an Attorney General’s opinion as to whether or not there is a “fatal flaw.” (Ex. 355, at GOM46402.) Alen’s notes show that she understood that Knapp, the lawyer for the LMC, believed the LMC was supposed to have input on how it was worded. (Id. at GOM46400.) Alen had a draft of Wood’s request for the Attorney General’s opinion in the files she removed from PRO and hid in her basement. (Ex. 350, at GOM46162-65.) October 14, 1992 Wood requests an opinion from Attorney General Stenberg. (Ex. 143.) Among other things, the opinion request asserted that: (1) “there is no prohibition for the applicant to reasonably modify the site” to meet site suitability requirements and as long as the waste disposal structure (as opposed to the larger 320-acre site) was not in a wetland then the site suitability requirements would not be violated (id. at 4), but (2) if groundwater discharged within the disposal units and the buffer zone, then the regulations were not satisfied (id. at 5). Mid-October, 1992 Allen leaves PRO job. (Tr. 158.) She takes 19 boxes of documents from the PRO office and puts them in her basement. (Tr. 160, 168.) The boxes are hidden by Allen until her counsel produces them to Nebraska in April of 2001. (Tr. 163-65.) Nebraska then produces them to the plaintiffs in discovery in this case. Although Allen invokes privilege against self-incrimination during her deposition (Tr. 166), Allen testifies at trial about the boxes after being told by Nebraska and the Commission that they will not request prosecution of her (Tr. 178). Allen admits that some of the documents that she took appear damaging to Nebraska, particularly those documents which seem to show a plan to have the Governor influence Wood if Wood decided to grant the license. (Tr. 180-81.) Otherwise, Allen’s testimony is replete with statements that she did not know why she did things or that she did not recall. At trial, Nebraska points out that Allen suffers from severe recurring depression and fibromyalgia, both of which adversely affect her ability to recall, and takes several medications, some of which affect her ability to remember. (Tr. 417-21.) November, 1992 Moeller begins work as PRO staffer and takes over Kate Allen’s LLRW duties. He had been an attorney at DOH and DEQ. (Filing 99, at Tr. 167, 169-72 (preliminary injunction transcript).) Earlier, he had worked with Scofield and Allen on uranium mining issues that involved Scofield’s state senatorial district. (Tr. 1678.) From November, 1992 Moeller works at PRO. During his time at PRO, and like Allen, he attends various private directors’ meetings where license questions are discussed. (Tr. 4832-35.) November 9, 1992 Assistant Attorney General Willard’s opinion in response to Wood’s request is prepared, stating that “your interpretation of these regulations is legally defensible.” (Ex. 3932 at 3.) November 9, 1992 Moeller calls Linda Willard, and “asked her if she could hold off a couple of days in issuing it.” (Ex. 51.) He is told that the opinion was nearly done, and that Ms. Willard must check with her supervisor to see whether the opinion can be held. Moeller asked Willard what the opinion said and was told “there is a legal basis for DEQ’s position and that it is a defensable [sic] position.” (Ex. 51.) Moeller sends an e-mail to Kim Robak and Rod Armstrong, the PRO director, recounting this information. (Ex. 51.) Moeller testifies that he called Willard at the request of Kim Robak. (Tr. 1694.) Sometime after November 9, 1992 Moeller testified that sometime after November 9, 1992, he met with Robak, Wood, and Horton and, pursuant to Ro-bak’s instructions, he called Willard to withdraw the request for the opinion. (Tr. 1695.) Moeller testified that both he and Robak knew that Willard’s opinion would support DEQ’s position, which had been articulated in the earlier opinion request. (Tr. 1695.) Moeller also testified that he had seen a draft of the opinion request. (Tr. 1694.) November 16, 1992 Randy Wood sends letter requesting withdrawal of Attorney General opinion. (Ex. 6102.) Willard’s opinion is never issued. November 19-20, 1992 Moeller talks with DOH lawyer and is told that DOH will play whatever role the Governor wants in the LLRW licensing process, but DOH and DEQ cannot resolve their differences. Moeller sends e-mail to Robak and Armstrong stating “we should be prepared to send out marching orders ....” (Ex. 54.) December 2, 1992 A meeting with Wood, Horton, Robak, and Moeller is scheduled for this date. (Ex. 54.) December 31, 1992 Moeller called the NRC and spoke at length with an NRC commissioner and an NRC staff member. (Tr. 1703-05; Ex. 60.) Among other things, he discussed whether an LLRW site could be engineered to overcome site suitability problems. (Tr. 1704.) According to an e-mail Moeller sent Robak and Armstrong at 3:16 P.M. on December 31, “I [Moeller] called Mike Linder, DEQ counsel and let him know about the substance of my telephone call with NRC.” (Ex. 60.) Moeller’s e-mail concluded by stating, “I’ll keep you posted if I hear anything on DEQ’s interpretation of the regs.” (Ex. 60.) Afternoon of December 31, 1992 According to Moeller, “Randy Wood called me on, I think New Year’s Eve, December 31st, and basically said we’ve resolved our issues surrounding the Attorney General’s opinion, we need a chance to talk to Kim and the governor.” (Filing 99, at Tr. 210 (preliminary injunction transcript).) Moeller then sent an e-mail to Robak and Armstrong stating: “I spoke to Randy Wood late thursday, Dec. 31 and he stated that he was ready to sit down and talk with the Governor about whatever differences that DOH and DEQ had concerning their siting regs. is solved.” (Ex. 60.) Moeller added: “He [Wood] wants to make sure that if he starts getting into areas a[sie] that the governor does not want to hear concerning licensing issues that he be told to stop his presentation.” (Id.) 1992 33.34 inches of precipitation at Butte, NE, for this year versus mean annual precipitation at this site of 23.67 inches. (Ex. 3384, at 2.4-53.) January 5, 1993 Nelson meets with members of the LMC to discuss litigation regarding the “community consent” issue. (Ex. 675.) January 11, 1993 On January 11, 1993, Wood, Horton, Ro-bak, Moeller, and Nelson conferred in person. (Filing 99, at Tr. 211 (preliminary injunction transcript).) According to Wood, he told the Governor “we were going to issue a notice of intent to deny ... based upon the fact that there were wetlands on the site, and that those wetlands caused the site to fail the site suitability requirement in Title 194 of our DEQ regulations.” (Filing 99, at Tr. 372 (preliminary injunction transcript).) According to Moeller, Nelson and Robak asked questions. (Filing 99, at Tr. 212 (preliminary injunction transcript).) As Robak testified, “I believe somebody, whether it was [the] Governor, or myself, or somebody else at the meeting made the determination that Randy needed to be absolutely certain” and Wood “need[ed] to make sure that all the I’s are dotted, and T’s crossed with regard to the decision before we announced it.” (Tr. 652.) The Governor’s office then started making plans to ensure that the “I’s” were dotted and “T’s” crossed. January 13, 1993 Moeller put together and sent to Robak a schedule that included: “Assembly and Review by DEQ-DOH Attorneys of appropriate documents and review of historical documents” followed by “review by AG and Governor’s Office.” (Ex. 62.) Robak responded to Moeller’s schedule, which had been sent via an e-mail. In handwriting on a hard copy of the e-mail, she wrote, “Don’t profs-It will be seen by others-hand carry or call.” (Ex. 786.) “Profs” was the name for Nebraska’s email system. (Tr. 465, 641-42.) January 13, 1993 State of Nebraska, ex rel. E. Benjamin Nelson, Governor v. Central Interstate Low-Level Radioactive Waste Commission and U.S. Ecology, Inc., No. 4:93CV3042, is filed in United States District Court for the District of Nebraska. (Ex. 1539 (docket sheet and selected filings).) Linda Willard with the Attorney General’s office is lead counsel. Suit contends that no “community consent” was obtained for Boyd County site. With the court holding that the notice of the site selection was given to the Nebraska legislature in February, 1990, the case is dismissed, among other reasons, because Nebraska’s suit was more than two years too late and time-barred under Art. IV(i) of the Compact regarding when an aggrieved party state must sue the Commission. Decision rendered October 8, 1993. (Ex. 1539.) Decision affirmed June 13, 1994. (Id.) January 22, 1993 Despite contrary advice from Collier, Shannon law firm (Ex. 593), Nebraska issues intent to deny because the site does not meet site suitability requirements, including the presence of wetlands. (Ex. 8; Ex. 1411, App. A at 23.) USE subsequently initiates “a contested case” under Nebraska administrative procedures for appealing agency decisions to challenge the intent to deny. (Ex. 6113.) During that proceeding, USE discovers some but not all of the damaging e-mails from Allen. January 22-23, 1993 Jay Ringenberg, the DEQ program manager for the LLRW program, testified at trial that he was not consulted in any way about the intent to deny decision arrived at by Wood and Horton. (Tr. 4880-81.) In fact, he was not informed of the decision until about two days before it was announced. (Tr. 2153, 4702, 4879.) He later learned that Wood had spoken with the Governor’s office prior to the decision, and that Wood had consulted only with DEQ and DOH lawyers prior to the decision. (Tr. 4880-81.) This greatly upset Ringenberg as he was the designated DEQ employee who was primarily responsible for the LLRW program. (Tr. 4702.) Like Ringenberg, Rogers, of DOH, testifies that she was “surprised” and “stunned” that she was not consulted prior to the decision. (Tr. 5258.) As the DOH person primarily responsible for the LLRW program, she had no explanation why she was not consulted prior to the decision being made. (Tr. 5568-69.) August 12, 1993 Attorney Bill Lamson, a lawyer with Kennedy, Holland, is hired to work on legal issues for DOH with regard to the contested case. (Tr. 7229-33; Ex. 1558.) His notes reflect that he is told that “Kim [Robak] wants me to coordinate everything but that is still in the work[s] in the meantime proceed [with] Dept, of Health representation.” (Ex. 1558.) August 24, 1993 Lamson meets with Robak, Wood, and Horton. (Ex. 1561, at PRI19493 (entry captioned “8/24/93 WML”).) It is decided that he will represent Nebraska, including DOH and DEQ, in the contested case proceeding. After that, Kennedy, Holland lawyers do extensive legal work and research regarding the contested case filed by USE, including “political influence,” “jurisdiction of DOH/DEQ,” and “attorney/client privilege.” (Ex. 1561 at 2, 7, 9.) August 27, 1993 USE amends its application, reducing size of tract from 320 acres to 110 acres and excluding all but one very small wetland. (Ex. 1411, App. A at 24.) September 3, 1993 Lamson, in a letter marked “PERSONAL & CONFIDENTIAL ” and “ATTORNEY/CLIENT WORK PRODUCT” advises Horton and Wood that: “[I]t is our opinion that both the Nebraska Departments of Health and Environmental Quality have licensing authority over differing aspects of compact facilities.” (Ex. 7067 at 7.) October, 1993 Nebraska withdraws notice of intent to deny the license, and USE then dismisses the “contested case.” (Ex. 4244; Tr. 1352-58.) Robak becomes Lt. Governor. She no longer has much to do with LLRW issues. (Tr. 681-82.) October, 1993-July, 1994 Nebraska submits third round of technical review comments to USE in October of 1993 and February of 1994. USE responds in May and July of 1994. (Ex. 1411, App. A at 21.) October 25, 1993 State of Nebraska, ex rel. E. Benjamin Nelson, Governor v. Central Interstate Low-Level Radioactive Waste Commission and U.S. Ecology, Inc., 4:93CV3367, is filed. (Ex. 1540 (docket